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Undipe, an Application [1991] PNGLR 297 (8 August 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 297 - Application of Paul Undipe 

[1991] PNGLR 297

N990

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE APPLICATION OF PAUL UNDIPE

IN THE MATTER OF THE POLICE APPEAL TRIBUNAL AT MOUNT HAGEN ON 23 MAY 1990

Mount Hagen

Woods J

19 July 1991

8 August 1991

ADMINISTRATIVE LAW - Judicial review of judicial acts - Grounds for - Police force - Disciplinary tribunal - Miscarriage of justice required.

On an application for judicial review,

Held

Findings of the Police Appeals Tribunal in disciplinary proceedings under the Police Force Act (Ch No 65) should only be disturbed if there has been a miscarriage of justice: it is not sufficient that the reviewing Court might have come to a different conclusion.

Judicial Review

This was an application for judicial review of a decision of the Police Appeals Tribunal made under the Police Force Act (Ch No 65).

Counsel

D Poka for the applicant.

Cur adv vult

8 August 1991

WOODS J: This is an application for an order of certiorari to remove into this Court and quash an order made by the Police Appeal Tribunal at Mount Hagen on 23 May 1990 that the appeal be dismissed. This application has come by way of s 155(4) of the Constitution.

This history of this matter is that, on 7 April 1984, there was an incident at the Bomana Police Barracks which led to an altercation between the applicant Paul Undipe who was then a senior sergeant and a young policeman on guard duty. As the applicant stated, he did speak strongly to the policeman because he says “he as a junior officer did not pay any respect or attention to me and so I held him by the neck and made him to listen to what I was saying”.

The applicant was charged under the Police Force Act (Ch No 65) with improper conduct and disgraceful conduct and such charges were heard by the Commissioner and the applicant was found guilty and penalised.

He appealed against the findings to the Police Appeals Tribunal which upheld the appeal against the charge of improper conduct but it dismissed the appeal against the charge of disgraceful conduct.

The charge of disgraceful conduct was that he assaulted a police college security guard in the performance of his duties. This relates to the strong words used at the time and the holding of the guard by his neck to make him listen to what he, the applicant, was saying.

There does not seem to be any suggestion that the laying hold of the guard resulted in any physical injury, however there does not have to be any injury for an assault to have occurred. The mere laying of hands on a person is an assault. So on the applicant’s own story there was an assault. The circumstances are that we have a disciplined force which has to show by example, which has a strict hierarchical structure for the purposes of the effective operation of the force and which therefore has extra disciplinary rules to support that structure. If the applicant had actually caused physical injury to the guard that would have been clearly a matter for the ordinary criminal law. However it is still an assault and also conduct which should not be necessary between a senior sergeant and a person of lower rank. If a member of the force does his duty incorrectly or fails to do his duty there are appropriate procedures to follow. There can be no reason for a senior officer to physically lay hold of a junior member of the force when such junior member is attempting to do his duty within the confines of the force barracks. So it was open to the Commissioner to find it was disgraceful conduct within the meaning of the Police Force Act.

Whilst the National Court can review such disciplinary findings the court must be sure that there has been an error or a miscarriage of justice before it should interfere in the internal operation of a disciplined force. It was open to the Commissioner to find disgraceful conduct, and the appeal tribunal has agreed with that.

In reviewing the decision of executive arms of government and the internal decisions of disciplined forces the National Court must not be seen to be interfering in the operation of responsible government and the operation of authorities given their own status and role under the Constitution. The power to intervene with or set aside executive policy runs counter to the theory of responsible government. This Court cannot merely interfere in administration decisions of the executive or disciplined forces merely because on the facts the court may have formed a different view. If the National Court does that it becomes no more than a part of the administration or force and thereby loses its distinctive and independent character. I must be careful not to step into the shoes of the Commissioner in the case before me now. I can only interfere if I am clearly satisfied that there has been a miscarriage of justice in the internal operation of the police force.

On the material before me I cannot find there has been a miscarriage of justice. Just because the police force or the State has not appeared to oppose this application does not mean I must automatically grant the application. I must myself be satisfied that the facts warrant the court’s interference. I am not so satisfied.

I therefore dismiss this application.

Application dismissed

Lawyer for the applicant: Kopunye Lawyers.